A Child’s Right to be Heard

The welfare of a child is a “paramount consideration” when making any decision that may affect them. This fundamental principle is formalised by the Family Law Act 1957 (‘FLA’), echoing the requirements of the Convention of the Rights of the Child to give children a voice in court, either directly or through a representative.

When directly participating in litigation, children are vulnerable to becoming a weapon of their parents’ disputes, used to achieve one party’s desired outcome.

Even when children act on their own interests, their insight may be limited by their age or maturity.

As a result, Australian courts prohibit children from being present at their parents’ court proceedings unless called upon by a court order.

Instead, their long-term needs are determined and expressed through a medium or representative – commonly a family consultant’s report, expert witness or independent children’s lawyer.

This considers the ‘best interests’ of the child while minimising distress.

Following a court order or individual application, children’s views are captured by ‘family reports’ in 60% of cases.

They are often required where the children are mature enough to express their own wishes or are victims of abuse.

Written by family consultants who must “ascertain” and “include the views of the child”, family reports are the second most referenced documents in judgements.

Therefore, both the child’s current wishes and future needs are articulated, strongly influencing the outcome.

If a family report is insufficient and specialist knowledge is required, experts may be employed to represent the child’s stance.

Either by application or court order, the expert will be selected through mutual agreement of the parties or the court. Restrictions on expert examinations are in place to ensure children are not traumatised by excessive interviewing.

Additionally, assessors may aid the judge’s understanding of expert evidence but are rarely appointed. Other mediums that may complement expert or family reports include “affidavit, video conference, closed circuit television or other electronic communication” as suggested by Family Law Rules 2004.

Although the reports are prepared for trial, they can encourage settlement in the 95% of family disputes that do not go to court.

If early settlement occurs, one can only hope that the warring parents have agreed on an arrangement that respects their child’s needs.

Parenting plans are written agreements about each parents’ responsibilities. This may include the child’s residence, time with each parent, maintenance and contact with others.

The FLAencourages but does not require parents to regard “the best interests of the child as the paramount consideration”. Fortunately a dysfunctional parenting plan can be altered by subsequent agreement.

Further, it has minimal legal value apart from overriding earlier court orders and becoming evidence for later court cases. Only a judge’s parenting orders are legally enforceable.

Overall, family courts have shifted towards a less adversarial approach. The whole procedure is simplified and negotiation-based with discussion guided by judges rather than parties.

At his own motion, the judge can question witnesses and call for evidence. If the judge excessively intervenes with the conduct of counsel and subsequent outcome, the decision can later be overturned.

Contrary to the win-lose mentality generated by an adversarial system, this co-operative model focuses on the child’s welfare.

Amid a complex adult conflict, it is easy for a child’s small voice to be warped or lost. The Family Court of Australia provides a representative network and procedural safeguards that both protect and involve the innocent third party.

Definitioner

Witness

A witness is a person who gives evidence to the Court about his or her knowledge of a case.

Trial

A Trial is the final hearing of a matter before a Judge (or Judicial Registrar). Evidence will be heard by the Judge who at the end of the trial will make a decision and orders which will finalise the matter.

Rules

a set of directions that outlines court procedures and guidelines. The rules of the Family Court are the Family Law Rules 2004 and the rules of the Federal Magistrates Court are the Federal Magistrates Court Rules 2001.

Parties

Both the applicant and respondent are parties to the proceeding. If a third party is involved or someone is given permission to intervene they also become parties to the proceedings.

Parenting plan

a written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.

Order

The Court has the power to order a person to do certain things. Judicial Registrars and Registrars can only make certain types of orders.

Judge

The person who will make a final decision about your case if it goes to a trial.

Independent children’s lawyer

a lawyer appointed by the court to represent a child’s interests in a case.

Family Report

A Family Report covers the findings and recommendations of an assessment of a family. The report is from a behavioural science viewpoint, not a legal viewpoint. It involves interviews with the family members and other people who are important to the child's or children's welfare. Family Reports are prepared by family and child counsellors (which include Court Mediators) or welfare officers appointed under the Family Law Regulations.

Family consultant

a psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce.

Court order

the actions the parties or a party must do to carry out a decision made by a court. An order may be either interim or final.

Affidavit

An affidavit is a written statement by a party or witness. It is the main way of presenting the facts of a case to the court. An affidavit must be signed before an authorised person (such as a lawyer or Justice of the Peace) by way of swearing on the Bible or attesting to the truth of the contents of the statement.